Wednesday, March 6, 2013
Rape and immigration consequences
I recently resolved a case where the stakes were rather high: incarceration and then deportation.
My client was a lawful United States resident and has been here for many years. He has an American child. His girlfriend and mother of the child accused him of raping her. He was arrested, charged with second-degree rape which is a felony in Maryland and locked up. Not long after that his girlfriend recanted her story and basically claimed that she accused him of rape because she was jealous that she thought he was seeing someone else.
One might think the case would go away on its own. Unfortunately my client did not invoke his right to an attorney and the police interrogated him. The prosecution kept claiming that my client confessed to the rape. I watched the alleged confession. If it was a confession it was pretty slim. Nowhere in the confession did he say "I forced myself upon her" or "I know that I raped her". At best it was my emotions overcame me.
The physical evidence of rape was also equivocal. There was some mild injury to the vaginal area which could be consistent with rape or merely rough sex.
The prosecution had a problem. The victim had recanted and their physical evidence was not particularly strong. The defendant had a problem, if he was convicted of rape not only would he be a felon, not only would he likely have substantial incarceration, he would thereafter be deported and lose everything he earned in the United States. I should point out that he has worked here legally for many years at the same job and pays his taxes.
The prosecution wanted a conviction, my client wanted to remain in this country and avoid lengthy incarceration. The state and the defense were able to resolve this case through a guilty plea to the misdemeanor of second-degree assault. There needed to be some careful legal maneuvering. The rape could not simply be amended to second-degree assault. A brand-new count of assault needed to be added separately so that negative immigration consequences could be avoided.
I am pleased to report that the case resolved, my client is again working and this difficult matter is behind him. Assuming he lives his life as he always has lived it, within the bounds of the law, there is a possibility that we can even get the misdemeanor assault conviction stricken.
If the client is not a United States citizen and is facing criminal charges, he needs an attorney who can pay attention to the details and provide a vigorous defense so as to minimize not only incarceration but immigration consequences.